Presentation on "Respinding to the Abuse of Motions in Limine", made at the ALI-CLE Annual Eminent Domain and Land Valuation Conference in January 2020 in Nashville, Tennessee

1. January 2020
Responding to the Abuse of Motions in Limine
Anthony F. DellaPelle, Esq., CRE®
McKirdy, Riskin, Olson & DellaPelle, P.C.
Morristown, New Jersey
William E. James, Esq.
Senior Assistant Attorney General
Office of the Attorney General of the State of Tennessee
Chattanooga, Tennessee

2. Course Outline
•Motions in limine
• General purpose and applications
•Applicability to eminent domain matters
•Admissibility and Net Opinions
•Litigating Highest and Best Use
•Rule 104 hearings and trial motions
•Implications for the future
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3. Motions in Limine – General applications
• “A pretrial request that certain inadmissible evidence” be excluded.
Cho v. Trinitas Regional Medical Center, 129 A. 3d 350 (N.J. App. Div.
2015)
• Trial judge retains discretion to rule on admissibility “pretrial” or
during trial
• Most evidence problems best resolved in the atmosphere and
context of the trial by the trial judge
• Condemnation cases generally characterized by liberal introduction
of evidence that bears upon the just compensation to recreate the
hypothetical agreement of sale between a willing buyer and willing
seller on the date of value.
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4. Motions in Limine – General applications
• Requests should be sparingly granted, particularly when motion seeks
exclusion of expert testimony which would effectively render the party’s
entire claim futile. Bellardini v. Krikorian, 537 A. 2d 700 (N.J. App. Div. 1988).
• “The motion in limine is nor ordinarily employed to choke off an entire claim
or defense…Rather it is usually used to prohibit mention of some specific
matter, such as an inflammatory piece of evidence.” Lewis v. Buena Vista
Mutual Ins. Assoc. 183 N.W. 2d 193, 200-201 (Iowa 1971).
• “Motions in limine are not to be used as a sweeping means of testing issues
of law. Such motions are to be used to prevent some specific matter,
perhaps inflammatory, from being interjected prior to the trial court’s having
decided on its admissibility outside the hearing of the jury.” Schicktl v. Slack,
737 S.W. 2d 628, 630 (Ark. 1987).
• Bradley v. Caterpillar Tractor Company, 394 N.E. 2d 825, 832 (Ill. App. 1979):
court concluded that trial court’s orders in limine were so overbroad that
“defense counsel was unduly restricted in presenting a defense for his
client….”
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5. Motions in Limine – The Gatekeeper of Expert
Opinions in Eminent Domain matters
• State v. Alaska Continental Dev. Corp., 630 P. 2d 977 (Al. 1980): Alaska Supreme Court
affirms trial court’s refusal to rule prior to trial on admissibility of evidence of
enhancement in value purportedly due to project influence.
• U.S. v. 14.38 Acres of Land, 80 F. 3d 1074 (5th Cir. 1996): trial court abused its discretion in
excluding expert testimony found to be “speculative” regarding severance damages relating
to future flooding on remainder of riverfront property taken for flood control.
• In re Eminent Domain v. Diebolt, 320 P. 3d 955 (Kan. 2014): trial court properly (a) allowed
a property owner without appraisal expertise to express a valuation opinion based upon
his own views, and (b) excluded the owner’s own cost approach.
• Metropolitan Water District v. Campus Crusade for Christ, 161 P. 3d 1175 (Cal. 2007): trial
court improperly excluded opinion evidence of probability of zone change or approvals to
value property as residential development/resort site –stating that the court’s role is to
examine whether “the proffer supplies sufficient evidence to permit the jury to find” such
reasonable probability.
• U.S. v. Certain Land in City of Detroit, 547 F. Supp. 680 (E.D. Mich. 1982): condemnor’s
“kitchen sink” application to exclude owner’s entire appraisal found to improperly suggest
that the trial judge is to decide highest and best use, holding that this would “make the
right to a jury trial a hollow right”
• Northeast CT Econ. Alliance v ATC Partnership, 256 Conn. 813(2001): evidence of
environmental contamination and remediation costs may not be excluded from
condemnation proceeding.
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6. Daubert v. Merrell Dow Pharmaceuticals,
509 U.S. 579 (1993)
• A methodology- based approach to expert opinion reliability
• Daubert provides a non-exhaustive list of factors to consider:
• (1) whether the scientific theory has been adequately tested;
• (2) whether it has been subjected to peer review and possibly
publication;
• (3) whether standards exist for the maintenance or control of the review;
and
• (4) whether the scientific theory is generally accepted in the scientific
community.
• Factors dovetail with the overall goals of our evidential standard and can
help guide our courts when performing their gatekeeper role
• Daubert factors provide a roadmap for expert reports, in preparing to take
and defend expert depositions, as well as preparing arguments for Rule 104
hearings which evaluate the admissibility of expert testimony
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7. HIGHEST AND BEST USE – the
Battleground:
The evolution of 60+ Years Of
New Jersey Case Law

8. State by State Highway Comm’r v. Gorga
26 N.J. 113(1958)
• Partial taking of state highway – zoned residential. Owner suggested
commercial value. State contended property was a “swamp” and had
no development potential
• Fair Market Value (FMV) as of date of taking MAY be affected by
prospect of an amendment of the zoning ordinance
• Evidence of HBU value NOT restricted to current utilization of property
• 2 Step Process: 1) Judge screen evidence: is there reasonable
probability of change in near future 2) does record contain sufficient
facts to evidence probability to warrant consideration by jury?
• Owner entitled to receive fair market value of property for its current
use or for any use which it has a commercial value in the reasonable
anticipation in the near future
• Must be PROBABLE NOT JUST MERELY POSSIBLE
• Avoid “unbridled speculation”

9. State by Comm’r of Transp. v. Caoili
135 N.J. 252 (1994)
• Focused upon probability of subdivision and site plan approval for
residentially zoned property on a State highway.
• The reasonableness of a use of condemned property including its
HBU must be considered in light of any zoning restrictions that apply
to the property.
• Holding consistent with Gorga that, in determining FMV, jury may
consider potential zoning change affecting the use of the property if
court deems that such a change is reasonably probable.
1) Is evidence sufficient to allow jury to consider probability of a zoning
change? If YES:
2) Jury permitted to assess amount based on subdivision/site plan/zoning
change

10. State v. Hope Road Assoc.
136 N.J. 27(1994)
• State’s appraiser valued property for residential purposes and
owner’s appraiser relied upon probability to value property for
commercial use.
• The Court applied Gorga’s principles regarding zoning change and
subdivision approval to that of site plan approval.

11. County of Monmouth v. Hilton
334 N.J. Super. 582 (App. Div. 2000)
• Total taking of large 5 family beach house for local redevelopment
purposes
• Applied Gorga principles to probability of assemblage of property
• 2 step process:
• 1) was assemblage probable in near future from date of taking?
• 2) jury must be instructed to consider, in its determination of
FMV, the premium a willing buyer would pay for probability of a
future assemblage over and above FMV as shown by existing use
of property
• Court held testimony of property owner’s expert was speculative
because property valued as if assemblage already occurred

12. Borough of Saddle River v. East Allendale, LLC
216 N.J. 115 (2013)
• Plaintiff acquired 2-acre parcel improved with gas station and
parking.
• HBU was agreed to be a bank and parking lot BUT dispute on size and
reasonable probability that a variance would be granted
• Competing experts may opine over likelihood of obtaining a zoning
change IF the court first determines there is a reasonable probability
N.J.R.E. 104 Hearing
• Caoili’s gatekeeping function should be done prior to trial
• Reasonable Probability: based on standards, requirements and “all of
the criteria” that governs approval of bulk variance

13. Bloomfield Train Station – What Motions in
Limine Have Become
• .62 Acres/27,000 sq ft
• Long, narrow shape; sloped topography
• Improved with 2-story, 3,671 sq ft Train Station Building
• Historic Designation/Built in 1912
• Next to commuter rail line to NYC
• Redevelopment Plan Permitted Uses:
• Residential/Retail Uses
• 2.5 FAR
• Up to 5 Stories
• Parking off-site

14. Tax Map/Photos of Bloomfield Property

15. Photos of Bloomfield Property

16. Photos of Bloomfield Property

17. Bloomfield - Highest and Best Use
• Township – renovation of Train Station, plus modest retail space
• Value = $450,000
• Cost Approach; Income Approach
• Prior Owner – construction of mixed-use project including 34
apartments and 12,306 sq ft of retail space
• “As of Right” development
• Value = $3,275,000
• Sales Comparison Approach

18. Witnesses
• Appraisers (4)
• Value based on HBU conclusion
• Architects (2)
• Description of projects
• Engineers (3) – Civil, Structural, Transportation
• Site constraints
• Township – constraints make development infeasible
• Owner – constraints are common and surmountable
• Project Finance Consultants (2)
• Feasibility of proposed project
• Estimate project costs, revenues and expenses

19. The Story and Outcome
• Condemnor moves in limine to bar owner’s entire case – denied after
Rule 104 hearing
• Owner moves in limine to exclude rebuttal expert using discounted
cash flow analysis – granted without Rule 104 hearing as a matter of
law
• 2016 trial - jury verdict - $2,900,000 – 2 ½ week jury trial after 4-day
Rule 104 hearing
• Appeal by condemnor - remand by Appellate Division upheld trial
court’s admission of owner’s expert opinions, but remands on
exclusion of financial feasibility rebuttal expert
• 2018 retrial - jury verdict - $1,600,000
• Jury does not indicate its HBU conclusion
• Clearly deeper financial feasibility analysis permitted in 2018 trial
was important

20. Motions in Limine – Lessons learned?
• Care must be exercised to avoid indiscriminate application of it lest
partied be prevented from even trying to prove their contentions..
• Timing of dispositive motions and consideration of opportunity to be
heard at a meaningful time in a meaningful manner.
• Treatment of dispositive motions as being akin to summary judgment
• Trial judge’s role as gatekeeper with respect to net opinions or
“speculative” opinions
• Use of Rule 104 hearings and timing
• Expect that the litigation of contested highest and best use opinions
will become more time-consuming, expensive and complicated
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21. Final Thoughts
Q&A?
Thank you!
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